Archive for May, 2017

The Philadelphia Chamber of Commerce’s effort to halt the implementation of Philadelphia’s new wage equity law has been dismissed – for now.

By way of background, Philadelphia is at the forefront of increased legislative measures across the country designed to combat wage equity issues. In December of 2016, the Philadelphia City Council passed an ordinance making it unlawful for employers to (1) inquire about a prospective employee’s wage history, and (2) rely on a prospective employee’s wage history in determining that individual’s wages unless the employee “knowingly and willingly discloses” such information. Similar legislation was passed in Massachusetts in 2016 and Oregon last week.

The Philadelphia ordinance was set to go into effect on May 23, 2017. However, the Philadelphia Chamber of Commerce filed a Complaint and a Motion for Preliminary Injunction in the United States District Court for the Eastern District of Pennsylvania on April 6, 2017. In response, the City filed a Motion to Dismiss, arguing that the Chamber of Commerce did not have legal standing to challenge the ordinance. The City agreed to temporarily halt the effective date of the ordinance pending the Court’s decision.

Proponents of the City’s ordinance assert that basing a worker’s wages on her previous salary serves to perpetuate gender wage inequality. The Chamber asserts that the ordinance violates the constitutional rights of its members without meaningfully advancing the City’s interest in eliminating gender discrimination wage disparities. The Chamber further states that the language of the ordinance is overly broad and vague, thereby making it unduly burdensome on employers. In its Motion for Preliminary Injunction, the Chamber stated that the ordinance would be less restrictive and constitutional if it allowed wage history inquiries, but prohibited employers from using wage history as the sole determination of a worker’s salary.

On May 31, 2017, the Court held that the Chamber of Commerce lacks standing to challenge the City’s ordinance. The Court did not address the merits of whether the ordinance passes constitutional muster. However, that issue may still be decided on another day. The Court’s holding was predicated on the fact that the Chamber did not identify a member who would suffer specific harm from the Ordinance. The Court has allowed the Chamber fourteen days to file an Amended Complaint, and there is also the possibility of an individual business filing a similar Complaint.

Philadelphia employers should be aware of this litigation and the possibility of the ordinance taking effect this summer. Violations of the ordinance can result in compensatory damages, punitive damages, fines, and even imprisonment.

Last week, the Eleventh Circuit Court of Appeals took up the plight of Draco – not the wizarding nemesis of a certain lightning-bolt-shaped scared boy, but a Gwinnett County Police Department now-retired Belgain Malinois. In affirming the ruling of the district court granting dismissal to “Officer” Draco, the Eleventh Circuit determined that Georgia law does not provide for negligence liability against dogs.

After Bat-Bogey Hexing the claims made against the human officers (because, let’s face it, those are nowhere near as interesting), the court turned to the question of whether the claims against Draco were viable. As the court noted, if it could not determine that the claims were not viable, then it would have to determine if Draco could claim official immunity and how!

In examining Georgia precedent, the unanimous court quickly determined that the codification of negligence, by its express terms, provides that only a person may be held liable for breaching a legal duty. Even the statutory definition of person (which includes non-people such as corporations, firms, etc.), did not provide any basis for such a claim. In fact, the court was even able to cite to its own precedent interpreting the First Amendment that a cat had no right to free speech because it could not be considered a person.

Finally, the court noted that even if there was any ambiguity about whether a dog could be sued, the creation of such a right would also create an abundance of practical problems such as: how to serve Draco, how Draco could retain legal services (short of Legilimency, of course), how to apply official immunity defenses to Draco for the claims made against him in his individual capacity as a public employee, and if he were found liable, how could he be expected to pay damages?

In the end, the court ruled in favor of Draco as if he had quaffed a potion of Felix Felicis. As for plaintiff’s claims? They were as dead on appeal as if struck by Avada Kedavra itself.

As spring was rolling into Atlanta, so was momentum for the Georgia legislature to pass a new sick leave law for Georgia employers. Finally, in late March, Georgia passed SB 201, which requires employers who offer sick leave to allow employees to use their sick leave to care for immediate family members. The new law only applies to employers who employ 25 or more employees (but excludes employers who offer an employee stock ownership plans) are excluded and to employees who work at least 30 hours per week.

In short, the law requires covered employers to allow up to five days of existing sick leave per year to be used by employees to care for “immediate family members,” which includes employees’ children, spouses, parents, grandchildren, grandparents, and dependents. Please note, however, that the law does not extend the amount of sick leave employees may earn or accrue, nor does it require employers to modify sick leave policies other than to allow some of that leave to be used to care for immediate family members. Practically speaking, this new leave law serves as a mini-FMLA since employees can use sick leave to care for immediate family members. But for those employers who simply have one PTO bank, this new law should not have any real impact as employees would have been able to use PTO to care for a family member prior to this law going into effect.

The law does not create a new cause of action against employers, so it is difficult to predict how violations of the law will be enforced (if enforced at all). Furthermore, the law is slated to expire after three years, unless it is renewed by the General Assembly. The law will go into effect on July 1, 2017.

Despite the current Administration’s recent executive orders seeking to place limits on U.S. work visas, a surprising expansion of the H-2B work visa program was included in the annual budget draft introduced this past week. This development is especially welcome news for the landscaping, seafood processing, forestry and hospitality industries, all of whom depend heavily on this visa for temporary, seasonal workers.

The current H-2B visa program has an annual quota of 66,000 workers. The H-2B quota for the entire 2017 fiscal year was exhausted in mid March. The new budget proposal includes a provision that vests authority in the Secretary of the Department of Homeland Security to double the annual quota of H-2B visas. It should be noted that, while DHS Secretary Kelly has publicly expressed reservations about doubling H-2B visa availability, he nonetheless signified a willingness to substantially raise the annual 66,000 visa cap.

While virtually every U.S. work visa program is the subject of intense and polarizing debate in Congress, this proposal seems to reflect a recognition by the current administration that U.S. businesses continue to experience significant difficulties in recruiting U.S. workers for temporary, seasonal positions.

For additional information related to this topic and for advice regarding how to navigate U.S. immigration laws you may contact Kenneth S. Levine of the law firm of Freeman, Mathis & Gary, LLP at (770-551-2700) or [email protected].

As of July 1, 2007, Section 741.313 of the Florida Statutes mandated that Florida employers with 50 or more employees must provide an employee who has been employed for three or more months with up to three days of leave from work in any 12-month period if the employee or a family or household member of an the employee has been a victim of domestic or sexual violence. Even though this law is nearing its tenth anniversary on the books, it may never have gotten the attention it needs in Florida’s employment law circles. Here are some frequently asked questions to get you up to speed on this law:

Are there any limitations on what reasons or activities the employee can use the leave for?

Yes. An employee may only use the leave to:

Seek an injunction for protection against domestic violence or an injunction for protection in cases of repeat violence, dating violence, or sexual violence;

Obtain medical care or mental health counseling, or both, for the employee or the employee’s family or household member to address physical or psychological injuries resulting from the act of domestic or sexual violence;

Obtain services from a victim services organization, like a domestic violence shelter or rape crisis center;

Make the employee’s home secure from the perpetrator of the domestic or sexual violence or to seek new housing to escape the perpetrator; or

Seek legal assistance in addressing issues arising from the act of domestic or sexual violence or to attend or prepare for court-related proceedings stemming from the act of domestic or sexual violence.

Does the employee have to provide the employer with notice in order to take leave?

Generally, yes. Except in cases of imminent danger to the health or safety of the employee or the employee’s family or household member, an employee requesting leave under this law must provide the employer with appropriate advance notice of the leave as required by the employer’s policy, along with sufficient documentation of the act of domestic or sexual violence as required by the employer.

Does the leave need to be paid?

No. Whether this leave is paid or unpaid is left to the discretion of the employer.

Can the employee take this leave before the employee exhausted paid time off?

No, not unless the employer waives this requirement.

Are there any other mandates for the employer under this law?

Yes. Employers are prohibited from interfering with, restraining or denying an employee’s exercise or attempt to exercise the employee’s rights under this law. Employers are also prohibited from discharging, demoting, suspending, retaliating against or otherwise discriminating against an employee for exercising the employee’s rights under this law. In addition, private employers are required to keep confidential all information relating to the employee’s leave.

Can the employee file a lawsuit against the employer for failing to comply with this law?

Yes. The employee may sue the employer for violations of the act and claim as damages all wages and benefits the employee would have been due had the violation not occurred up to the date of judgment.

What can the employer do to prevent potential problems that may arise when an employee wants to take leave under this Statute?

Each Florida employer with more than 50 employees should have a clear, concise written policy setting forth the employer’s notice and documentation requirements to request and take leave under this law, as well as whether the leave is paid or unpaid and whether the employer will waive the requirement that the employee must exhaust his or her paid time off before taking leave. Employers should also be mindful of the fact that physical or mental injuries to an employee or his or her family members may also trigger protections under the Family and Medical Leave Act (FMLA).